Terms and Conditions

All sales made by Berkeley Communications Corporation (‘Seller’) to the issuer of a purchase order (‘Buyer’) are made pursuant to the following terms and conditions (‘Agreement’):

Acceptance: These terms of sale apply to all quotations made and sales orders entered into by the BerkCom. BerkCom’s acceptance is conditional on Buyer’s assent to these terms in lieu of those in Buyer’s purchase order that are inconsistent with or in addition to these terms will be deemed stricken. Any changes in these terms must be agreed in writing by an officer of BerkCom before becoming binding. All orders or contracts must be approved and accepted by BerkCom at its corporate office. These terms will be applicable whether or not they are enclosed with the products sold hereunder.

Passage of Title and Risk of Loss: All sales are made EX Works point of origin (INCOTERMS 2000) at which point title and risk of loss passes to Buyer, and BerkCom’s liability at delivery ceases.

Delivery: Shipping dates are approximate. In no event will BerkCom be liable for any re-procurement costs, delay or non-delivery or any other failure to perform an obligation due to circumstances beyond BerkCom’s control. In the event of any such delay, the data of delivery or other performance will be at the request of BerkCom be extended for a reasonable period. In the event BerkCom’s production is curtailed for reason beyond its reasonable control so that BerkCom cannot deliver the full amount released hereunder, BerkCom may allocate production deliveries among its various customers then under contract for similar products. The allocation will be made in a commercially fair and reasonable manner. When an allocation has been made, Buyer will be notified of the estimated quota made available.

Payment Terms: Unless specified, all invoices are payable thirty (30) days from date of invoice subject to credit approval of the Buyer by BerkCom. No discounts are authorized. Amounts past due will incur interest at a rate equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. BerkCom may at any time require that shipment be made on a cash-with-ordered basis or an irrevocable letter of credit.

Security Interest: BerkCom reserves, and Buyer hereby grants to BerkCom a security interest in the products, and all proceeds from any sale thereof, sold to the extent of invoice amount. Buyer agrees to promptly execute any documents requested by BerkCom in order to perfect and protect such security interest.

Taxes: Any present or future sales, revenue, excise, withholding, or other tax, duties, fees or charges of any nature imposed by any public authority, applicable to the transaction will be added to the purchase price and will be paid by buyer, or in lieu thereof, Buyer will provide BerkCom with an exemption certificate acceptable to the taxing authority.

Equipment Warranty: All equipment sold includes BerkCom’s standard three (3) year warranty from the original ship date. Additional warranty terms, and extended warranties, can be found in the BerkCom Warranty.

Disclaimer: THE WARRANTIES SET FORTH IN THIS SECTION, ARE EXCLUSIVE AND EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, WARRANTIES OF PURPOSE, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE BERKCOM BE LIABLE TO THE BUYER FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR PROFITS, WITH A CLAIM BY REASON OF BREACH OF WARRANTY OR BASED ON CONTRACT, STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER THE BERKCOM HAS BEEN ADVISED OF THE RISK OF SUCH DAMAGES IN ADVANCE. IN NO EVENT SHALL THE BERKCOM LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNTS RECEIVED BY THE BERKCOM FROM THE BUYER.

Product Changes: BerkCom reserves the right to make substitutions, modifications and improvement to the products, provided that such substitutions, modifications or improvements shall not materially affect performance of the products.

Breach of Agreement: BerkCom reserves the right to declare all sums immediately due and payable and to cancel any order or shipment, without liability to Buyer, in the event that Buyer is in breach of a material obligation hereunder, including but not limited to failure to comply with credit terms. If Buyer is in breach, Buyer shall remain liable for all unpaid sums and reimburse BerkCom for all damages suffered or incurred by BerkCom as a result of Buyer’s breach. The remedies provided herein will be in addition to all other legal means and remedies available to BerkCom.

Termination: Either party may terminate this Agreement if either files or has filed against it a petition in bankruptcy or otherwise for the protection of debtor, makes an assignment of benefit of creditors, has trustee or receive appointed for all or substantial all of its assists, ceases to conduct business in the normal course or otherwise takes or has taken against it an action of a similar nature.

General. Failure of BerkCom to enforce at any time any of the provision hereof will not be construed to be a waiver of the right of BerkCom thereafter to enforce any such provisions. Buyer will not assign this Agreement or any portion hereof without the prior written consent of BerkCom, and any such attempt at assignment will be void. BerkCom will be entitled to assign all or any portion of the Agreement. This Agreement will be governed by and construed in accordance with the laws of the State of California, United States of America. The United Nations Convention of the International Sale of Products will not apply. Any suit hereunder will be brought solely in the federal or state courts in the Northern District of California, and Buyer hereby submits to the personal jurisdiction thereof. Buyer acknowledges that all or part of the products purchased hereunder may be manufactured and or assembled at any of BerkCom’s or it’s subcontractor’s facilities, domestic or foreign. Unless otherwise agreed in writing signed by both Buyer and BerkCom, BerkCom will retain title to and possession of all tooling of any kind used in the production of products furnished hereunder. Buyer, by accepting these products, certifies that it will not export or re-export the products furnished hereunder unless it complies fully with all laws and regulation of the United States relating to such export or re-export. No modification to this Agreement, nor any waiver of any right, shall be effective unless agreed to in writing by both parties. If any portion of this Agreement, is held invalid, the parties agree that such invalidity shall not affect validity of the remaining portion of this Agreement, and the parties shall seek in good faith to agree to substitute for the invalid provision a valid provision that most closely approximate its terms. In the event of any dispute arising out of the breach of the terms of this Agreement, then, in addition to court costs, the prevailing party shall be entitled to recovery its reasonable attorneys’ fees from the other party, as determined by a court of competent jurisdiction. This Agreement supersedes all proposals, oral or written, all negotiations, conversations or discussion between the parties relating to the Agreements and past course of dealing or industry custom. Buyer represents and agrees that it has not relied on any representation or warranty other than those contained herein in entering into this Agreement. The terms and conditions of this Agreement contain the entire understanding and agreement of the parties respect to the subject matter hereof.